Balaji Steel Re-Rolling Mills vs Commissioner, Central Excise & Customs

Heard the learned Advocate appearing for the appellant. The appellant had filed an appeal in The Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. That appeal No. E/2535/04-Mumbai, which arose out of an order dated 14/05/2004 of the Commissioner of Central Excise and Customs (Appeals), Aurangabad, was placed for hearing on 22/08/2012. The appellant and the Advocate, both were absent. The Tribunal noted that when the case was called out, none appeared on behalf of the appellant. On the earlier date of hearing also none appeared in spite of notice. The notice issued is received back with the postal remark "left". In such circumstances, the appeal was dismissed for want of prosecution. An application for restoration was made and in which the appellant submitted that the notice was received with postal remark "left". The grievance of the appellant before the Tribunal was that the appeal reached hearing after a lapse of 8 years. Unit premises, from 16/02/2002, were closed. In these circumstances, they prayed that the appeal be restored to file.

The restoration application has also been dismissed and we find that from both orders, no substantial question of law arises within the meaning of section 35(G) of The Central Excise Act, 1944. When the appellant engaged an Advocate and even the Advocate did not bother to follow up the matter for 8 long years and when it reached hearing, none was present, we do not see how the Tribunal can be faulted for dismissing the appeal for non-prosecution. These are all matters of discretion and the discretion in this case has been exercised fairly. It has not exercised arbitrarily or capriciously. There is no breach of principles of natural justice. In these circumstances, no substantial question of Law arises for consideration. The appeal is devoid of any merits, hence dismissed. No costs.